WD v HD

On an appeal from a financial remedy decision, the appellate court reviews the lower court’s discretionary decision. It may intervene only where the decision was outside the band of reasonable decisions available to that court, or where a serious procedural irregularity made it unjust.

Where periodical payments are varied, the court must consider all the circumstances, give first consideration to the welfare of minor children, and assess whether termination would cause undue hardship. Hardship alone is insufficient. An appeal may be allowed in part, leaving other provisions intact where the lower court’s separate conclusions remain within the permissible range.

On an appeal in financial remedy proceedings, a Calderbank offer may be admissible because the costs regime governing first-instance proceedings does not extend to appeals.

The wife appealed against an order made by a Deputy District Judge varying an earlier financial remedy consent order. The order terminated her spousal periodical payments, required a clean break, and required her to pay part of an older child’s private school fees. The parties’ financial circumstances had changed, including reductions in the wife’s income and fluctuations in the husband’s bonus.

The wife challenged the assessment of needs, affordability, earning capacity, tax credits and the clean break. Permission to appeal was granted. The central issues were whether the Deputy District Judge’s exercise of discretion was wrong, whether the school-fee and maintenance provisions produced an disproportionate result, and whether the clean-break decision was outside the permissible range.

1. Appeal standard. The appeal was a review, not a rehearing. Under Rule 30.12, the court could intervene if the decision was wrong or unjust because of a serious procedural or other irregularity. Applying Re B [2013] UKSC 33, the relevant question was whether the discretionary decision fell outside the band of reasonable decisions available to the lower court. The court did not hear oral evidence, although it permitted limited additional evidence.
2. Variation and affordability. In applying section 31(7) of the Matrimonial Causes Act 1973, the court had to consider all the circumstances, give first consideration to the welfare of minor children, and take account of changes in the matters relevant to the original order. The statutory test concerning termination of periodical payments permitted hardship, but not undue hardship.
3. The Deputy District Judge had failed adequately to analyse the parties’ respective net incomes and outgoings. The resulting comparison showed that the wife would have substantially less available income while meeting school-fee liabilities for children spending most of their time with her. Requiring her to pay half of the older child’s fees while removing approximately £6,000 per year in spousal maintenance was outside the permissible exercise of discretion. The appeal was allowed on that issue.
4. The husband was ordered to pay both children’s school fees in full. The order for 25 per cent of his bonus towards school fees was discharged, while the 20 per cent child-support provision remained. The arrangements for extras were varied so that the wife paid extras off the bill and the husband paid those on the bill, subject to a £500 limit for individual items unless agreed otherwise.
5. The clean-break decision was upheld. Although other parts of the judgment contained errors, the Deputy District Judge’s conclusion that the wife could adjust without undue hardship, and that a nominal maintenance order was unnecessary, remained within the band of possible decisions. The appeal was therefore dismissed on that issue.
6. Rule 28.3(8) concerned first-instance financial remedy proceedings. Following the reasoning in Judge v Judge [2008] EWCA Civ 1458, an appeal fell outside that regime. Calderbank offers were therefore admissible. The husband was ordered to pay 75 per cent of the wife’s costs, assessed at £7,500 including VAT.

1. High Court (Family Division): The appeal from the Deputy District Judge’s order was allowed in part. The school-fee and bonus provisions were varied, while the clean-break decision was upheld.
2. Deputy District Judge: By order dated 19 September 2014, the wife’s spousal maintenance ceased, a clean break was imposed, and she was required to contribute to the older child’s school fees.